The Supreme Court and Gay Marriage: Fearing Fear Itself

It's an understatement to say that there's some apprehension among many gays and lesbians about the Supreme Court's decision to take up the Prop 8 case. Forget what you've heard from gay leaders: They're showing a unified front, particularly because it was Chad Griffin, now the president of the largest group, the Human Rights Campaign, who spearheaded the challenge to Prop 8 as co-founder of the American Foundation for Equal Rights. Gay leaders aired their public disagreements about the case back in 2009, when it was first launched, sometimes bitterly. The case has gone great, and that has melted away much of the tension. Still, though on the record they're all on the same page now, and no one wants to cross the biggest and most influential gay group, privately the fear is palpable.

Legal experts expected that the court would hear a challenge to the rulings that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, and most LGBT activists have been relatively comfortable that they'll prevail on that case. However, few legal experts thought that the court would hear the Prop 8 case. The Ninth Circuit Court had narrowed the ruling to apply solely to California, giving the Supreme Court a perfect out to leave the issue of whether marriage is a constitutional right or not to another day, when there would be more acceptance of marriage equality and the court wouldn't be getting too far out front. But the court defied the experts yet again.

Is the fear warranted? That's a tricky question and depends on what it is you're afraid of. Is it quite possible that the court will hand down a sweeping decision upholding marriage bans in over 30 other states, ruling that marriage is not a fundamental right for gays? Absolutely, and if that's what you're afraid of, then be very afraid. Such a ruling could have a broad and enduring impact.

From everything I've read, it seems more likely that the Supreme Court would hand down a sweeping decision in that direction than in the other direction: throwing out marriage bans across the country. Many experts seem to think that the court will do something more restrained: affirming the Ninth Circuit's ruling, which would make it apply only to California, a state that had granted marriage rights to gays and lesbians and then took them away at the ballot. Alternatively, there's the issue of standing, which the Supreme Court is taking up again. Do the Prop 8 proponents even have legal standing to challenge Judge Walker's ruling that Prop 8 is unconstitutional, given that the attorney general and the governor didn't file a challenge? If the Supreme Court thinks not, then the case goes back to Walker's ruling and would not apply beyond California.

But none of us has any idea why the Supreme Court took up this case. It only takes four justices to decide to take a case. Did the four most conservative justices believe they could get Justice Kennedy's swing vote? Or did the four liberal-leaning justices decide to take it up, thinking they'd in fact get Kennedy? Or did all nine justices believe they needed to take up the case for various reasons? We don't know, and the legal experts have been wrong on this issue and many others, so don't put much stock in speculation.

But I'm not afraid of the Supreme Court, and I am completely prepared for the worst possible outcome while hoping for the best. The court can't hold us back, nor can it stop a movement, even if it becomes an ugly impediment. Public opinion is shifting rapidly, and the movement for LGBT equality has come very far in such a short period of time. Few imagined it would happen so fast, and if there's a chance it may take longer by taking some risks that could bring full equality, I'm all ready for that. The alternative is to do nothing and continue without rights, perhaps indefinitely. Our current president supports full equality, and a previous great president, FDR, once wisely told Americans that "the only thing we have to fear is fear itself." That and the latest polling showing that Americans are with us should be enough for us to boldly move forward.